Struggling to categorize recidivist drug possession

Posted Sun, April 4th, 2010 9:15 pm by Anna Christensen

At oral argument in Carachuri-Rosendo v. Holder on Wednesday, the Justices' questioning seemed to center on congressional intent and the proper categorization of the crime of recidivist possession, as the Court struggled to determine whether recidivism should be classified as an offense in and of itself or instead as a sentencing element. (Before Wednesday’s oral argument, I previewed the proceedings here.)

Sri Srinivasan, arguing on behalf of petitioner Jose Angel Carachuri-Rosendo, began by arguing that his client had not been convicted of a felony and was therefore not ineligible for discretionary cancellation of removal. Justice Ginsburg immediately raised the issue of mootness, asking whether Mr. Carachuri-Rosendo's illegal re-entry following his deportation disqualified him from any relief from the Court. Mr. Srinivasan replied that the illegitimacy of the original deportation order meant that the second removal order "“ a reinstatement of the first "“ could not be considered valid either.

Returning to the question of Mr. Carachuri-Rosendo's eligibility for relief, Mr. Srinivasan told the Court that his client did not meet the key criterion for ineligibility "“ namely, that he was not convicted of a felony punishable under the Controlled Substances Act. Responding to a question from Justice Sotomayor, Mr. Srinivasan emphasized that a state conviction could qualify as a recidivist felony only if the state court made a finding of a valid prior conviction, and the felony conviction would have had to take place under a provision linking the recidivist categorization to sentencing consequences. He went on to address this sentencing question in greater detail, arguing that when the maximum sentence to which an offender is subject is a misdemeanor sentence, that offender cannot be said to have been convicted of a felony. Finally, turning to the Court's apparent concern that a decision in the case could enable federal consequences to turn on state prosecutorial decisions, Mr. Srinivasan argued that the Court had accepted such a scheme in Lopez v. Gonzales, and that offenders could be rendered ineligible for discretionary immigration relief regardless of state-level classification of drug possession crimes.

Assistant to the Solicitor General Nicole Saharsky argued on behalf of the respondent, Attorney General Eric Holder. Ms. Saharsky's argument centered on the government's understanding of Congress's intent with regard to immigration consequences for drug offenses. She told the Court that, consistent with its judgment in Lopez, it should find that Congress intended the same treatment for all noncitizens who engaged in similar criminal conduct. Justice Breyer, pointing to the statute, noted that it does not include an increased punishment for recidivism, and that the state offense did not correspond to an offense as outlined in the statute. Ms. Saharsky responded that a second inquiry was necessary: the Court should also ask how the federal offense would be punishable, considering recidivism as a sentencing factor rather than as an element of the offense. When Justice Ginsburg also expressed doubt about the government's interpretation of the statutory language, suggesting that Congress might not have intended such harsh consequences for two minor possession offenses, Ms. Saharsky replied that the consistent "hard line" Congress has taken with regard to criminal aliens indicates that such a reading might be accurate. Finally, pointing to the Court's decision in Almendarez-Torres, Ms. Saharsky argued that by treating recidivism as a penalty element rather than as an offense, Congress intended to identify it as separate and unique from other drug offenses.

In a brief rebuttal, Mr. Srinivasan immediately fielded a question posed by Justice Kennedy, telling the Court that his argument entailed the assumption that recidivism, in this case, referred to repeating the same type of crime. He also posed a hypothetical in response to the government's argument, noting that if an individual were subject to two sets of proceedings "“ the first at the state level, and the second at the federal level "“ an individual who did not receive a felony sentence following the second set of proceedings could nonetheless be found to have been "convicted of a felony punishable under the Controlled Substances Act" under the government's reasoning. Finally, reiterating a point made in his briefs, Mr. Srinivasan argued that, to the extent that any lingering ambiguities remained as to the legal questions in the case, principles of lenity dictated that these ambiguities should be resolved in Mr. Carachuri-Rosendo's favor.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.